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March 14, 2011 According to New EPA Assessment, U.S Population Continues to Face Increased Cancer Risk From Airborne Emissions

Siros_Steven_COLORBy Steven M. Siros

On March 11, 2011, the United States Environmental Protection Agency released its fourth version of the National Air Toxics Assessment ("NATA").  NATA is an analytical tool relied upon by federal, state and local governments to evaluate the risks posed by exposure to airborne hazardous pollutants.  The current version of NATA contains 2005 emissions data submitted primarily by the states for 178 pollutants and is used as a prioritization tool to identify geographic areas, pollutants and emission sources that should be considered by regulators when evaluating the health risks posed by airborne hazardous pollutants.

CATEGORIES: Air, Toxic Tort

March 11, 2011 EPA Adds and Proposes New Sites to Superfund List

Sigel_Gabrielle_COLORBy Gabrielle Sigel


In the March 10, 2011 edition of the Federal Register, the United States Environmental Protection Agency (EPA) issued the final rule adding 10 new sites to the National Priorities List (NPL).  EPA also issued a proposed rule to add 15 new sites to the list of those sites that it proposes to add to the NPL in the future. 

The NPL is authorized by the Comprehensive Environmental Response, Compensation and Liablity Act, 42 U.S.C. 9601, et seq (also known as Superfund).  Only EPA is allowed to propose and finalize the sites on the NPL, which it determines: (1)  based on the ranking of a site with a score of 28.50 or higher under the agency's Hazard Ranking System (40 CFR part 300); (2) if a site is designated by a state as its top priority site (40 CFR 300.452(c)(2); or (3) if EPA determines, without using the HRS, that the site poses a significant threat to public health based on a health advisory issued by the Agency for Toxic Substances and Disease Registry (ATSDR) and EPA believes that remedial action is more cost-effective than removal action at the site (40 CFR 300.452(c)(3).  The NPL includes those sites with known or threatened releases of hazardous substances that may present an imminent or substantial danger to public health or welfare.  The NPL is to guide EPA's priorities for further investigatory and remedial action, but is not a determination of any party's liability.  The NPL is divided between sites that EPA may address and those owned or operated by other federal agencies, which then will be addressed  by those agencies.

The ten new sites on the NPL are:

CATEGORIES: Cercla, Hazmat, Toxic Tort, Water

February 25, 2011 January 2011 Lender Liability Update Now Available

Gabrielle Sigel and Phoebe Scott, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Environmental Cost Recovery & Lender Liability Update Resource Center their January 2011 Update of Environmental Cost Recovery developments.  The January 2011 Lender Liability Update can be viewed by following this link:

CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort, TSCA, Water

February 23, 2011 Proposed Illinois House Bill Could Result in Significant New Penalties for Illinois Businesses

Siros_Steven_COLORBy Steven M. Siros

A proposed bill pending before the Illinois House of Representatives' Environmental and Energy Committee seeks to amend Illinois' Environmental Protection Act (the "Act") to allow municipalities to impose significant penalties against any person or organization owning or leasing property where there has been a release of a hazardous substance or any other contaminant that the municipality (or other unit of local government) finds to be injurious to public health or the safety of the community.  House Bill 1441, which was proposed by Representative Frank Mautino (D-76th Dist.), seeks to amend the Act to allow for the imposition of penalties of up to $50,000 per violation and $10,000 for each day of continuing violation where there has been a release of a hazardous substance (or other contaminant) that the municipality (or unit of local government) deems harmful to public health or safety.  The bill, as currently drafted, allows the municipality to designate, in its sole discretion, when there has been a release of a contaminant that injures the public health or safety such that the penalty provisions are triggered.

CATEGORIES: Cercla, Climate Change, Greenhouse Gas, RCRA, Toxic Tort, Water

February 11, 2011 EPA Submits Draft Hydraulic Fracturing Study

Grayson_Lynn_COLORBy E. Lynn Grayson


This week EPA submitted its draft study plan on hydraulic fracturing for review to the Agency's Science Advisory Board (SAB), a group of independent scientists. The scope of the proposed research includes the full lifespan of water in hydraulic fracturing, from acquisition of the water, through the mixing of chemicals and actual fracturing, to the post-fracturing stage, including the management of flowback and produced or used water and its ultimate treatment and disposal.

CATEGORIES: Cercla, Hazmat, Sustainability, Toxic Tort, Water

February 4, 2011 Contractor Owed No Duty to Warn Public of Emissions Exceedence

Siros_Steven_COLORBy Steven M. Siros


A Pennsylvania appellate court held that an environmental contractor hired to conduct air emission monitoring owned no duty to persons residing near an industrial facility to warn of excess beryllium emissions. In Reeser v. NGK North American, Inc., the plaintiff contracted chronic beryllium disease as a result of alleged exposure to beryllium emissions from a nearby industrial facility. The facility owners had retained an engineering firm to conduct stack testing at the plant. The results of that stack testing showed exceedences of beryllium from the facility. The plaintiff sued, among others, the engineering firm, on the basis that the engineering firm had breached a alleged duty to warm the public of the health risks posed by the excess emissions. The plaintiff argued that Section 324A of the Restatement (Second) of Torts imposed such a duty to warn on the engineering firm. The court rejected that argument, noting that in order for a duty to be imposed by Section 324A of the Restatement, the engineering firm needed to have undertaken a duty to protect the community. The court noted that there was no evidence that the engineering firm had undertaken such a duty nor was there any evidence that the testing had been conducted negligently. To hold otherwise, the court noted, would inhibit owners from hiring qualified consultants to investigate environmental conditions and would have been inconsistent with the purpose behind Restatement (Second) of Torts Section 324A. It should be noted that some states do impose an independent duty on environmental contractors to report certain conditions that are identified in the course of an environmental investigation so it is prudent to evaluate whether there are any state-specific reporting obligations as part of any environmental investigation.

CATEGORIES: Air, Toxic Tort

February 3, 2011 More Insight On EPA’s Regulation Of Hexavalent Chromium And Perchlorate

Grayson_Lynn_COLORBy E. Lynn Grayson


In testimony before the Senate Environment and Public Works Committee, EPA Administrator Lisa Jackson confirmed that EPA likely will regulate hexavalent chromium in tap water but only after completing its health assessment study of the toxic contaminant. Jackson told the committee that the regulatory process would take up to two years including the completion of the human health assessment study and the ensuing public comment period. The final study is now being peer-reviewed and should be completed later this year.

CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort, TSCA, Water

January 21, 2011 Shareholder Resolutions Filed Today Over Hydraulic Fracturing Risks

Grayson_Lynn_COLORBy E. Lynn Grayson


U.S. investors announced today they have filed shareholder resolutions with nine oil and gas companies, pressing them to disclose their plans for managing water pollution, litigation and regulatory risks that are increasingly associated with ever-expanding natural gas hydraulic fracturing operations, also known as "fracking." Resolutions were filed with a number of the natural gas industry's significant players including Exxon Mobil, Chevron, Ultra Petroleum, El Paso, Cabot Oil and Gas, Southwestern Energy, Energen, Anadarko and Carrizo Oil and Gas.

CATEGORIES: Hazmat, Sustainability, Toxic Tort, Water

January 21, 2011 OSHA Succumbs to Noisy Public Comment

Sigel_Gabrielle_COLORBy Gabrielle Sigel


On January 19, 2011, in response to vociferous objection from the regulated community, OSHA withdrew its proposed official interpretation of the term "feasible administrative or engineering controls" as used in its General Industry and Construction Occupational Noise Exposure standards.   The standards state that employers must use administrative or engineering controls, rather than personal protective equipment (PPE), to reduce noise exposures that are above acceptable levels when such controls are  "feasible," i.e., "capable of being done," even if the cost of such controls are much more than the effective use of PPE, such as ear plugs.  Notably, OSHA withdrew this proposed interpretation before the close of public comments in March 2011.


January 10, 2011 U.S. Supreme Court Denies Petition to Consider Comer GHG Nuisance Decision

Sigel_Gabrielle_COLORBy Gabrielle Sigel


On January 11, 2011, the U.S. Supreme Court denied the petition for a writ of mandamus filed by the plaintiffs in Comer v. Murphy Oil U.S.A., a climate change common law case with an unusual procedural outcome in the Fifth Circuit Court of Appeals.  In re Comer, et al., No. 10-294 (docketed Aug. 30, 2010). The underlying complaint was brought by property owners who claimed that the greenhouse gas ("GHG") emissions of the defendant energy, fossil fuel-burning, and chemical companies had worsened the impacts of Hurricane Katrina on their properties and that they were entitled to damages and other relief under, inter alia, common law nuisance, trespass, and negligence theories.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability, Toxic Tort

December 21, 2010 WHO Issues Indoor Air Quality Guidance

Grayson_Lynn_COLORBy E. Lynn Grayson


The World Health Organization (WHO) recently issued its first guidance on indoor air quality concerns. The new report titled WHO Guidelines for Indoor Air Quality-Selected Pollutants evaluates exposure risks and other considerations for nine chemicals commonly found in indoor air. The nine chemicals addressed in the report are benzene, carbon monoxide, formaldehyde, naphthalene, nitrogen dioxide, polycyclic aromatic hydrocarbons, radon, trichloroethylene, and tetrachloroethylene.

CATEGORIES: Air, Hazmat, OSHA, RCRA, Toxic Tort, TSCA

October 7, 2010 Aerospace And Refinery Air Toxics Data Requested

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA recently sent information requests to 1,000 aerospace manufacturers and 152 petroleum refineries seeking toxic air emissions data. See 75 Fed. Reg. 59,710; 75 Fed. Reg. 60,107  (September 28-29, 2010). The purpose of these information requests is to determine whether future controls are needed to limit hazardous emissions. EPA must either promulgate additional standards against any residual risk or make an official determination that no further controls are necessary.

CATEGORIES: Air, Hazmat, Toxic Tort